The 9th U.S. Circuit Court of Appeals Oct. 1 declined to rehear a case in which it held that attention deficit hyperactivity disorder is not a disability covered by the Americans with Disabilities Act.
Matthew Weaving, a police officer, alleged that he was fired because of his disability. His ADHD amounted to a protected disability because it substantially limited him in the major life activity of working, he said. A jury agreed but on appeal, the 9th Circuit reversed the finding. “On the contrary, there is evidence showing that Weaving was in many respects a skilled police officer,” it said.
Weaving alternatively alleged that ADHD substantially limited him in the major life activity of interacting with others. The 9th Circuit was again unpersuaded. Ninth Circuit precedent states that such a skill is a major life activity, but that it “does not mean that any cantankerous person will be deemed substantially limited in a major life activity. Mere trouble getting along with coworkers is not sufficient to show a substantial limitation,” the court said, quoting McAlindin v. County of San Diego, 192 F.3d 1226 (1996).
The court ignored, however, the part of McAlindin where the court said that the ability to get along with others could itself be a major life activity, according to the dissenting judge. Instead, it turned to a 2nd Circuit ruling which held that “getting along with others” is distinct from “interacting with others “ (Jacques v. DiMarzio, Inc., 386 F.3d 192, 203 (2nd Cir. 2004)), despite the Jacques court specifically rejecting McAlindin.
Judge Consuelo M. Callahan argued that the court selectively reviewed the evidence to cast Weaving in an unsympathetic light. “The majority may not like Matthew Weaving … But the outcomes of our disabled litigants’ cases should not turn solely on the amount of sympathy they inspire. The law protects the disabled, not the likeable,” she said (Weaving v. City of Hillsboro, No. 12-35726 (9th Cir. Aug. 15, 2014)).
Weaver then asked that the court rehear his case en banc, saying that it had created a split within the 9th Circuit. The majority relied on Jacques to differentiate “interacting with others” from “getting along with others,” a distinction not permitted by McAlindin, he said.
The ruling also conflicts with the Amendments Act’s mandate that the definition of “disability” be construed broadly, he argued. The majority incorrectly relied upon pre-ADAAA cases like Jacques to narrowly construe “disability,” Weaving said.
The court, however, denied his request. While the full court was invited to vote on whether to rehear the case, only the three judges who were involved in the initial hearing voted, declining Weaving’s petition 2-1.
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